Full opinion text
OPINION SIMANDLE, District Judge: This case involves a citizen suit brought under § 505 of the Federal Water Pollution Control Act (the “Clean Water Act” or the “Act”), 33 U.S.C. § 1365, by the Public Interest Research Group of New Jersey (“NJPIRG”) and Friends of the Earth (“FOE”) against defendant Hercules, Inc., a Delaware corporation doing business in New Jersey. Plaintiffs allege that defendant has committed numerous discharge, monitoring, reporting and recordkeeping violations of the discharge permit issued to it pursuant to § 402 of the Act, 33 U.S.C. § 1342. The court presently has before it the following motions filed by both parties: 1. Plaintiffs’ Motion for Partial Summary Judgment as to Liability and for Permanent Injunctive Relief; 2. Defendant’s Cross Motion for Summary Judgment; 3. Defendant’s Motion in Limine to Bar Evidence Regarding Hercules’ Kenvil Facility; 4. Defendant’s Motion in Limine to Bar the Proposed Trial Testimony of Michael O’Donnell Regarding the Application of the NJDEPE and the EPA Civil Penalty Policies; and 5. Plaintiffs’ Notice of Appeal of Magistrate Judge Rosen’s March 11, 1992 Order, in which Judge Rosen ruled that a certain memorandum relied upon by Michael O’Donnell, a paralegal in plaintiffs’ attorneys’ office, was not work product and ordered that the memorandum be turned over to defendant. BACKGROUND The Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., was enacted in 1972 and effected “a major change in the enforcement mechanism of the federal water pollution control program from water quality standards to effluent limits.” S.Rep. No. 414, 92d Cong., 1st Sess., reprinted in A Legislative History of the Federal Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess., Vol. 2 at 1425, 1972 U.S.Code Cong. & Ad.News at 3668, 3675. In furtherance of this underlying shift in emphasis from water quality standards to discharge control, the Clean Water Act prohibits the discharge of pollutants into the nation’s waters except as specifically authorized by the Act. This authorization comes in the form of discharge permits, which are issued pursuant to Title IV of the Act, 33 U.S.C. §§ 1341-1345. The permit program applicable in this case is established in § 402 of the Act—the National Pollutant Discharge Elimination System (“NPDES”). Section 402(a)(1), 33 U.S.C. § 1342(a)(1), authorizes the Administrator of the United States Environmental Protection Agency (the “EPA”) to issue discharge permits in accordance with national standards promulgated by the Administrator. NPDES permits require permittees to establish and maintain records; to install, use, and maintain monitoring equipment; to sample effluent; and to submit regular reports to the EPA. 33 U.S.C. § 1318(a)(4)(A). These reports are known as “discharge monitoring reports” (“DMRs”) and they must be submitted at regular intervals specified in the permit. 40 C.F.R. § 122.41(1)(4). Criminal penalties can be imposed for the submission of false information in the DMRs. 40 C.F.R. § 122.41(k)(2). In addition, permittees have an affirmative obligation to correct any past errors or omissions in reporting of which they subsequently become aware. 40 C.F.R. § 122.42(1)(8). On September 10, 1975, the EPA issued NPDES permit number NJ 0005134, effective October 31, 1975, to defendant Hercules. The 1975 permit authorized defendant to discharge limited quantities of pollutants from its Gibbstown, Gloucester County, New Jersey facility into the Delaware River (outfall 001) and Clonmell Creek (outfall 002), in accordance with the conditions set forth therein. Hercules’ 1975 permit expired on October 31, 1980. EPA regulations provide, however, that the terms of an expired EPA issued permit remain in effect until the effective date of a new permit. 40 C.F.R. § 122.6. In April 1982, the EPA delegated responsibility to the New Jersey Department of Environmental Protection and Energy (“NJDEPE”) for administering the NPDES program in New Jersey. 47 Fed.Reg. 17331 (April 13, 1982). On June 11, 1985, the NJDEPE issued NJPDES permit number NJ 0005134, effective August 1, 1985, to defendant. The 1985 permit likewise authorized Hercules to discharge limited quantities of pollutants into the Delaware River and Cronmell Creek (which flows into the Delaware River) from its Gibbstown facility through the two aforementioned discharge points, outfalls 001 and 002, in accordance with the conditions set forth therein. The NJDEPE issued a permit modification to Hercules on October 9,1987. That modification became retroactively effective on July 2,1986. Under New Jersey law, the expired 1985 permit, as modified, remains in effect until a new permit is issued by the State. N.J.S.A. 52:14B-11; N.J.A.C. 7:14A-2.3. On March 21, 1989, plaintiffs gave notice of defendant’s violations and of plaintiffs’ intent to file suit for such violations to the Administrator of the EPA, the NJDEPE, and to defendant Hercules. Plaintiffs gave this notice in order to comply with Section 505 of the Act, which requires the providing of at least sixty days notice before a party can file a citizen suit under the Act. 33 U.S.C. § 1365(b)(1)(A). This notice listed only sixty-eight (68) specific discharge violations which occurred from April 1985 through February 1989. Def.Ex. 9. It did not list any other type of alleged violation of Hercules’ permit, i.e., monitoring, reporting, or recordkeeping violations. Id. Plaintiffs filed their Complaint on May 24, 1989. In their Complaint, plaintiffs asserted that Hercules “has failed in numerous instances including, but not limited to, those listed in Appendix B to this Complaint to comply with its permit, including failure to comply with the effluent limitations and to monitor its discharge properly.” Def.Ex. 11 (Complaint) at ¶ 22. In Appendix B, plaintiffs specifically listed only eighty-seven (87) alleged discharge violations. Def.Ex. 11. Thirty-one (31) of the discharge excursions listed in Appendix B to plaintiffs’ Complaint were not listed in plaintiffs’ sixty-day notice letter. See Joint Final Pre-Trial Order (“JFPTO”), dated Sept. 3, 1991, at p. 33, ¶ 122. Plaintiffs have only filed the one, March 21, 1989 notice. They have never sought to file any additional sixty-day notices. See JFPTO at p. 33, ¶ 123. Nor, for that matter, have plaintiffs ever filed an amended Complaint. Over the course of this litigation, however, plaintiffs have added to the total number—and type—of alleged violations for which they seek to hold defendant liable. They have asserted these additional allegations through various “informal” amendments in the course of briefing the currently pending motions. (Plaintiffs also have withdrawn certain allegations as well as changed certain specific allegations from one category to another, e.g., certain instances previously alleged to have been monitoring violations now are listed as recordkeeping violations.) In sum, after having made several corrections and amendments, the plaintiffs allege that Hercules committed 114 discharge violations (ie., violations of the permit’s specific limitations on the levels of pollutants Hercules was authorized to discharge through outfalls 001 and 002), 328 monitoring violations, 58 reporting violations, and 228 recordkeeping violations. On May 5, 1989, after receipt of plaintiffs’ sixty-day notice but before the actual filing of the Complaint, Hercules received a Notice of Civil Penalty Assessment from the NJDEPE. Hercules objected to this notice on May 24, 1989. The matter was then referred to the New Jersey Office of Administrative Law. Hercules and the DEP engaged in settlement negotiations, which culminated in the execution of an Administrative Consent Order (“ACO”) in March, 1991. Def.Ex. 18. Under the ACO, Hercules was required to pay the NJDEPE $600,000 as a penalty for 115 permit violations which occurred from March, 1985—August, 1990.' In addition to this penalty, Hercules agreed to take various measures to protect against any future violations, including an agreement to implement an in-stream monitoring program and to develop a water quality model, acceptance of more stringent effluent limitations earlier than might otherwise have been required, and various construction requirements. Def.Ex. 18. All of the violations addressed by the NJDEPE in the March, 1991 ACO are included among the discharge violations alleged by plaintiffs. DISCUSSION I. Summary Judgment Motions Plaintiff has moved for partial summary judgment as to liability and for permanent injunctive relief enjoining defendant from violating the Clean Water Act in the future. In addition to opposing plaintiffs’ motion, the defendant has cross-moved for summary judgment. As is suggested by the fact that each side has made about two dozen submissions to the court in connection with these motions, the parties vigorously contest virtually every issue presently before the court. Defendant asserts that as a matter of law, it is entitled to summary judgment as to those violations not mentioned in plaintiffs’ sixty-day notice. It also argues that plaintiffs should not recover additional penalties for those violations addressed by the NJDEPE in its March, 1991 ACO. Defendant further contends that it is entitled to summary judgment, or that at least a genuine issue of fact exists to preclude summary judgment for plaintiffs, on certain alleged violations because these violations either did not occur, were “merely” the result of typographical errors on certain documents, or were covered by a statutory upset defense. As further discussed below, the court finds at the threshold that defendant is entitled to summary judgment on those violations not noticed in plaintiffs’ statutorily required sixty-day notice letter. The court recognizes that as a matter of equity, plaintiffs probably have many more arguments in their favor on this question. But after a careful, exhaustive review, I conclude that this result is constrained by the pertinent statutory provisions and regulatory language, as well as the applicable case law. A. Sixty-day Notice Requirement Section 505(b)(1), 33 U.S.C. § 1365(b)(1), provides in pertinent part: No action may be commenced— (1) under subsection (a)(1) of this section— (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order[.] 33 U.S.C. § 1365(b)(1). That provision further requires that “[njotice under■ this subsection shall be given in such manner as the Administrator shall prescribe by regulation.” Id. (emphasis added). The procedures prescribed by the Administrator of the EPA to govern the Act’s notice requirements are set forth at 40 C.F.R. § 135.1, et seq. The specific content requirements of the notice are set forth at § 135.-3(a), which provides: Violation of standard, limitation, or order. Notice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice. Defendant argues that § 505(b) and the accompanying regulations are clear, unambiguous and not subject to any exceptions. Defendant argues that plaintiffs are statutorily precluded from bringing suit upon any violations not previously mentioned in their sixty-day notice, and that defendant thus is entitled to summary judgment on those violations not so mentioned therein. The plaintiffs’ sixty-day notice listed sixty-eight discharge excursions which had occurred from April 1985 through February 1989. The notice did not allege any monitoring, reporting, or recordkeeping violations. Def.Ex. 9. Moreover, thirty-one of the discharge violations listed on the Complaint were riot listed in the plaintiffs’ March 21, 1989 notice letter. See note 2, supra. In support of its position, defendant cites the Supreme Court’s decision in Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), which involved an analogous notice provision in the Resource Conservation and Recovery Act (“RCRA”). In Hallstrom, the Supreme Court held that “the notice and 60-day delay requirements are mandatory conditions precedent to commencing suit under the RCRA citizen suit provision; a district court may not disregard these requirements at its discretion.” Id. at 31, 110 S.Ct. at 311. The Supreme Court’s holding in Hallstrom has subsequently been applied to Clean Water Act cases. See, e.g., National Environmental Foundation v. ABC Rail Corp., 926 F.2d 1096, 1097 (11th Cir.1991) (holding that “the 60-day notice requirement of 33 U.S.C. § 1365(b) is a mandatory condition precedent to the filing of a citizen suit under the Clean Water Act”) (Powell, J. (Ret.)). Plaintiffs cite four cases in support of their position. Three of these cases were decided prior to Hallstrom. Defendant argues, and the court agrees, that these cases therefore are all but irrelevant. In the fourth case, PIRG v. Witco Chemical Corp., C.A. No. 89-3146, 90-968, 1990 WL 512262 (D.N.J. June 28, 1990), the court held that the plaintiffs’ notice letter, which, like the letter at issue here, failed to list every violation subsequently claimed in the complaint, was broad enough to cover the violations added by plaintiffs after discovery. Id. slip op. at 4. Plaintiffs assert that their notice letter contained a list of all the effluent violations discoverable by them as of March 21, 1989, the day on which they mailed the letter. Pl.Reply Br. at 4. They also note that their letter specifically stated: The attached list is based on available permit records on file at the offices of EPA Region 2' in New York City. In some instances, information was missing from the public files. We therefore expect to request information from your records to bridge these data gaps and to supplement the lists of violations based on that information. Def.Ex. 9. Plaintiffs argue that this letter “thus put defendant on notice that it was violating the Act, that corrective action was necessary, and that plaintiffs expected to add to the lists of violations through discovery.” Pl.Reply Br. at 5. They further argue that by virtue of the statutory definition of “an effluent standard or limitation,” their letter effectively put defendant on notice of monitoring and reporting violations even though the letter did not explicitly refer to monitoring and reporting violations. Id. Hercules argues that because the notice letters and complaints in Witco are not part of this record, it is impossible to determine if that case has any relevance here. Def.Reply Br. at 1. It also attempts to distinguish Witco on other grounds as well. Id. In addition, Hercules asserts that “[i]t could not be clearer that this general language [of the notice letter] is insufficient to give the government an opportunity to act with regard to anything other than the sixty-eight discharge violations listed in the notice.... This general language is also inadequate to put Hercules on notice of the alleged violations so it could come into compliance and render the citizen suit unnecessary.” Id. at 2-3 (citing Hallstrom and 40 C.F.R. § 135.3(a)). One can think of a host of reasons why as a matter of policy and/or equity the sixty-day notice requirement should not be construed as strictly as the court construes it today. But the Supreme Court has made clear that this court is not free to disregard the notice requirements by exalting such considerations over the plain language of the statute and accompanying regulations. See Hallstrom, 493 U.S. at 31, 110 S.Ct. at 311, It is equally clear that except with respect to the sixty-eight discharge violations specifically listed therein, the one and only sixty-day notice letter filed by plaintiffs in this action does not satisfy the requirements of 40 C.F.R. § 135.3(a). That notice did not make any mention whatsoever of monitoring, reporting, or recordkeeping violations. I am not persuaded by plaintiffs’ argument that their mere mention of “effluent standard or limitation” in its sixty-day notice letter was sufficient to put defendant on notice that it also would eventually sue upon monitoring, reporting, and recordkeeping violations. Nor do I believe it was sufficient for plaintiffs to “warn” defendant that they would supplement their list of violations upon further reviewing Hercules’ records. Such general notice as was given by plaintiffs’ sixty-day letter does not satisfy the more specific, detailed requirements of 40 C.F.R. § 135.3(a), which were promulgated by the EPA pursuant to the authority vested in it by Congress in § 505(b)(1), 33 U.S.C. § 1365(b)(1). Specifically, other than for the listed effluent limitation violations, the notice letter fails to “identify the specific standard, limitation or order alleged to have been violated”— which means the permit requirement which has been violated. The notice letter fails to identify “the activity alleged to constitute a violation”—such as failure to test or report or keep adequate records, for example. The notice letter was also deficient as to unlisted violations by not giving the “date or dates of such violation,” all as required in 40 C.F.R. § 135.3(a). Each of these provisions is a component of statutory “notice of the alleged violation” as a prerequisite to suit under § 505(b)(1) of the Act. That each of the violations alleged in the Complaint must have been stated in the sixty-day notice letter likewise is compelled by the statute’s plain language, because § 505(b)(1) requires not just notice of an alleged violation, but “notice of the alleged violation.” (Emphasis added.) Congress could not have chosen clearer language to express the requirement that the Complaint will be limited to the violations listed in the sixty-day notice letter. Complying with the content requirements of 40 C.F.R. § 135.3(a) is just as important—and no less a statutory prerequisite to suit—as is the requirement of waiting sixty days after the giving of such notice before commencing suit. Section 1365 explicitly provides that “[njotice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.” 33 U.S.C. § 1365(b) (emphasis added). Moreover, the Supreme Court, citing its decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), a Clean Water Act case, also ■ cited a policy consideration militating in favor of strict construction. The Court cited legislative history as indicating “an intent to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits.” Hallstrom, 493 U.S. at 29, 110 S.Ct. at 310 (citations to legislative history omitted). The Court explained that requiring citizens to comply with the notice and delay requirements serves this congressional goal in two ways. First, notice helps obviate the need for citizen suits by allowing Government agencies to take responsibility for enforcing environmental regulations. Id. (citing Gwaltney, 484 U.S. at 60, 108 S.Ct. at 382). Second, notice gives the alleged violator “ ‘an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit.’” Hallstrom, 493 U.S. at 29, 110 S.Ct. at 310 (quoting Gwaltney, 484 U.S. at 60, 108 S.Ct. at 382). A vague or open-ended notice, such as plaintiffs’ notice at issue here, not only falls short of the statutory notice requirement, but it also fails to perform either of these two functions. Such notice does not help the EPA to assess intelligently whether to investigate or launch an enforcement action. Nor does it inform the violator of what it must do to avoid suit and bring itself into compliance. It is true, as plaintiffs note, and as defendant acknowledges, that “the bulk of Hercules’ testing and monitoring records were produced to plaintiffs on October 5, 1990 and January 11, 1991[,]” after the plaintiffs filed their sixty-day letter. See PLReply Br. at 5 n. 2; Def.Br. at 7 n. 20. Consequently, plaintiffs argue that “Congress could not have intended to require that the notice letter include violations about which plaintiffs had no knowledge, and could have had no knowledge, at the time the notice letter was written.” PLReply Br. at 5 n. 2. It may be true that Congress could not have expected plaintiffs to include such violations in their March 21, 1989 letter. But nothing prevents ed plaintiffs from complying with the Act’s requirements and the clear mandate of Hallstrom by filing another notice letter including these newly discovered violations, and then waiting sixty days before filing another Complaint or even an Amended Complaint. This result may seem counterproductive in light of the significant resources already invested in this case by all parties. But in Hallstrom the Supreme Court declined to allow the “ ‘absurd or futile results,’ ” id., 493 U.S. at 29, 110 S.Ct. at 310 (quoting United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940)), which petitioners argued would be compelled by giving effect to the literal meaning of the notice provisions, to dictate the outcome. Petitioners in Hallstrom made two arguments. First, they asserted that “strictly enforcing the 60-day delay provision would give violators an opportunity to cause further damage or actually accomplish the objective that the citizen was attempting to stop.” Id., 493 U.S. at 30, 110 S.Ct. at 310-11. Similarly, they argued that the courts would thereby be precluded, from giving essential injunctive relief until sixty days had elapsed. Id. The Court acknowledged this potential undesirable by-product of the sixty-day waiting period, but explained that the problem arises “as a result of the balance struck by Congress in developing the citizen suit provisions.” Id. The Court further noted that Congress addressed the dangers of delay in certain circumstances (neither of which is applicable here) by making certain exceptions to the required notice periods. The Hallstrom petitioners also argued that a strict construction of the notice provision would cause “procedural anomalies.” Id., 493 U.S. at 30, 110 S.Ct. at 311. They asserted that if Government agencies explicitly declined to act after being notified of alleged violations, it would be pointless to require the citizen to wait sixty days before commencing its suit. Id The Court stated that “[w]hile such a result may be frustrating to the plaintiff, it is not irrational[.] ... ‘[Permitting immediate suit ignores the possibility that a violator or agency may change its mind as the threat of suit becomes more imminent.’ ” Id. (quoting Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 82 (1st Cir.1985)). In sum, there has never been a statutory notice letter in this case that alleged a specific monitoring, reporting, or recordkeeping violation, so all of the alleged monitoring, reporting, and recordkeeping violations must be dismissed. Similarly, all of the discharge violations which occurred before the filing of the Complaint on May 24, 1989 but which were not listed in the plaintiffs’ sixty-day notice letter must be dismissed. The court will not dismiss those discharge violations which occurred after the filing of the Complaint, however, even though they were not specifically alleged in the notice letter. I believe that this result is implicitly, if not explicitly, dictated by the Supreme Court’s decision in Gwaltney, supra, and by the Act’s anticipation of a continuing post-complaint violation(s) of the same type as alleged when the action was commenced. In Gwaltney, the Court held that the Clean Water Act does not permit citizen suits for “wholly past violations.” Id., 484 U.S. at 60-61, 108 S.Ct. at 383. But, the Court further held, Section 505 of the Act does confer jurisdiction on the federal courts in citizen suits where either the defendant continues to violate its permit after the complaint has been filed or where the plaintiff makes a good-faith allegation of continuing violations in the complaint. Id at 64, 108 S.Ct. at 384. Moreover, “once such jurisdiction does attach, the court can assess penalties for all current and past violations of the Act, even if it is later proved that no violations actually occurred subsequent to the filing of the complaint.” PIRG v. New Jersey Expressway Authority, 822 F.Supp. 174, 179 (D.N.J.1992) (Gerry, C.J.) (emphasis in original) (citing Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 696 (4th Cir.1989) (on remand from Supreme Court); PIRG v. Carter-Wallace, Inc., 684 F.Supp. 115 (D.N.J.1988)). As Gwaltney makes dear, subsequently occurring violations not noticed in a citizen’s sixty-day letter were specifically contemplated—indeed required—by the Supreme Court as a prerequisite to a district court’s jurisdiction over a citizen suit under the Clean Water Act. Such later-occurring violations therefore can be maintained notwithstanding their absence from the sixty-day letter, provided they are of the “type of activity” (e.g., discharging pollutants in excess of permit limitations) as have been alleged in the notice letter. But those violations which in fact occurred before the complaint was filed on May 24, 1989 cannot be sued upon unless first noticed in compliance with 33 U.S.C. § 1365 and the accompanying regulations codified at 40 C.F.R. § 135.3. The court is not unsympathetic to the amount of time and resources that the parties, as well as the court itself, have put into this case on violations which must be dismissed for lack of statutory notice. The court also recognizes that the plaintiffs might decide to file another letter noticing the violations dismissed by the court today, thereby obligating the parties and the court to revisit the parties’ arguments concerning the merits of those particular allegations. Such considerations of judicial economy, however, do not override the statutory notice requirements. This court “must dismiss the action [with respect to those violations not noticed in plaintiffs’ sixty-day letter other than post-Complaint effluent limitation violations] as barred by the terms of the statute.” Hallstrom, 493 U.S. at 33, 110 S.Ct. at 312. See also National Environmental Foundation v. ABC Rail Corp., supra, 926 F.2d at 1097-1098; Bettis v. Town of Ontario, N.Y., 800 F.Supp. 1113, 1118 (W.D.N.Y.1992). Therefore, the court will grant summary judgment for defendant on all of the alleged violations not listed in plaintiffs’ March 21, 1989 notice letter, i.e., all of the alleged monitoring, reporting and recordkeeping violations whenever occurring, as well as on the alleged discharge violations which occurred before the Complaint was filed but which were not listed in plaintiffs’ notice letter. The discharge violations which will be dismissed for improper notice are those numbered 1, 10, 12, 35, 37, 39-40, 43, 47-48, 52, 54-55, 59-60, 62-66, 68, 70-71, 79-86, 88, 91, 93-97, 99-102, and 104-105 on the chronological list of discharge violations attached to plaintiffs’ September 14, 1992 letter to the undersigned. In addition to arguing that it is entitled to summary judgment for those violations not properly noticed by plaintiffs, defendant contends that the court must dismiss many of the remaining violations as well for various reasons. I will address these reasons in turn, below. B. Gwaltney’s “On-going Violation” Requirement 1. Subject Matter Jurisdiction Defendant argues that it is entitled to summary judgment as to those parameters where violations are not continuing. Plaintiffs argue that this court’s jurisdiction depends on defendant’s violations of its permit generally and not provision by provision of its permit. They further assert that even if a parameter-by-parameter analysis were required, most of the violations challenged by defendant would not be barred. Both parties rely primarily on the Supreme Court’s opinion in Gwaltney Of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), albeit on different interpretations thereof. As discussed, supra, Gwaltney held that the federal courts lack subject matter jurisdiction over citizen suits brought on the basis of wholly past violations. Id., 484 U.S. at 60-61, 108 S.Ct. at 382-83. The Court further held, however, that it was sufficient for jurisdictional purposes if the citizen-plaintiffs made good-faith allegations of ongoing violations. Id. at 64, 108 S.Ct. at 384. Hercules concedes that it has violated its permit on certain occasions since the filing of the Complaint in May, 1989. See, e.g., Def. Br. at 61 (discharge excursion occurred in August 1990); Def. Sept. 15, 1992 Letter Brief at 2 n. 3 (violation at outfall 002 in December, 1989). But with respect to the question whether a court is to look at each parameter separately, or whether a court may exercise jurisdiction over all parameters based on an on-going violation of only one (or some) parameters, plaintiffs and defendant each cite various lower court cases interpret ing Gwaltney and supporting the parties’ respective positions. See, e.g., Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 287 (D.Del.1989) (rejecting parameter-by-parameter approach); Sierra Club v. Port Townsend Paper Corp., 28 ERC 1676, 1678, 1988 WL 160580 (W.D.Wash.1988) (rejecting parameter-by-parameter approach); Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d at 697-98 (adopting parameter-by-parameter approach) (ruling on appeal from district court after case was remanded by Supreme Court); Natural Resources Defense Council, Inc. v. Gould, Inc., 733 F.Supp. 8, 10 (D.Mass.1990) (noting its intent to conduct parameter-by-parameter analysis) (citing Fourth Circuit’s opinion in Chesapeake Bay v. Gwaltney, 890 F.2d at 698). The Honorable Anne E. Thompson noted this conflict among the courts in her opinion upon motions for reconsideration of her previous decision in PIRG v. Yates Industries, Inc., 757 F.Supp. 438 (D.N.J.1991). See Corrected Memorandum and Order, dated June 9, 1991, 790 F.Supp. 511, 515. Judge Thompson held on reconsideration: [Ejvidence of violations in some parameters is admissible as evidence that future violations are likely in other parameters, thus satisfying the requirements of [the Supreme Court’s decision in] Gwaltney, particularly where, as is the case here, numerous parameters have been violated on many occasions since the filing of the suit. Evidence that defendant is generally not in compliance with the permit can convince the reasonable trier of fact that there is a continuing likelihood of recurring violations. Under the circumstances of this particular ease, plaintiffs have established that there is a continuing likelihood that future violations may occur in any of the permit parameters that defendant has been found to have violated in the past. The court particularly notes that defendant has continued to violate both effluent limitations and reporting and monitoring requirements, leading the court to conclude that there is a continuing likelihood of discharge violations in general and of reporting and monitoring violations in general. Accordingly, upon reconsideration this court stands by its earlier decision which granted summary judgment to plaintiffs on various violations which defendant argued were wholly past. Id., 790 F.Supp. at 516. I agree with Judge Thompson and hold that the court may exercise jurisdiction over all parameters based on an ongoing violation of any parameter, especially where multiple parameters have been violated in the past. In the present case, when the Complaint was filed plaintiffs properly alleged a pattern of ongoing violations of effluent limitations, and such violations continued post-complaint. Therefore, defendant’s motion for summary judgment on this point will be denied. 2. Mootness In addition to arguing that past violations must be dismissed for lack of jurisdiction, defendant asserts that plaintiffs’ case is moot. Defendant contends that plaintiffs have confused the doctrines of original jurisdiction and mootness, and that even if the court declines to grant defendant summary judgment on the former ground, the court should grant it on the latter. The court, however, declines to accept this invitation. The mootness doctrine is well established in the Supreme Court’s jurisprudence. See, e.g., North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam) (citing cases). Mootness is a jurisdictional question derived from Article III of the Constitution, which explicitly restricts the exercise of judicial power to instances where a “case or controversy” exists. Id. at 246, 92 S.Ct. at 404. In Atlantic States Legal Foundation, Inc. v. Eastman Kodak Company, 933 F.2d 124 (2d Cir.1991), the Second Circuit held that if there was no realistic prospect that the defendant will continue to violate the Clean Water Act, the case should be dismissed as moot. Id. at 128. See also Atlantic States Legal Foundation, Inc. v. Pan American Tanning Corp., 807 F.Supp. 230 (N.D.N.Y.1992) (citing, e.g., Eastman Kodak). The Fourth Circuit, however, noting that “the simple cessation of illegal activity upon the filing of a complaint does not moot a case[,]” Chesapeake Bay Foundation, 890 F.2d at 696 (citations omitted), has concluded that where there is proof of an ongoing violation, as that term is explained in the Supreme Court’s Gwaltney decision, a citizen suit under the Act “cannot become moot once there is assessment of civil penalties, so long as the penalties are for past violations that were part of or which contiguously preceded the ongoing violations^]” Chesapeake Bay Foundation, 890 F.2d at 697. Though the case sub judice is in a different procedural posture than was Chesapeake Bay, I believe, as did the Fourth Circuit, id. at 697, that the Supreme Court’s dicta in Gwaltney on the mootness question supports the conclusion that this case is not moot. In Gwaltney, the Supreme Court stated that: Long-standing principles of mootness, however, prevent the maintenance of suit when there is no reasonable expectation that the wrong will be repeated. In seeking to have a case dismissed as moot, however, the defendant’s burden is a heavy one. The defendant must demonstrate that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Mootness doctrine thus protects defendants from the maintenance of suit under the Clean Water Act based solely on violations wholly unconnected to any present or future wrongdoing, while it also protects plaintiffs from defendants who seek to evade sanction by predictable protestations of repentance and reform. Id., 484 U.S. at 66-67, 108 S.Ct. at 386 (emphasis in original) (quotation marks and citations omitted). Defendants have not met their “heavy burden” here. First, it must be emphasized that mootness must be judged here at the time the Complaint was filed, not at the time the court reaches the motion. This principle is dictated by Gwaltney’s holding that a violation is considered ongoing not only when a violation occurs after the filing of the complaint, but even where the plaintiff makes a good-faith allegation that violations are continuing, but in fact no post-complaint violation actually occurs. As previously mentioned,- defendants have conceded that they committed violations after the filing of plaintiffs’ Complaint. Second, it is hot absolutely clear that such violations will not be repeated, even though the present proofs do not support permanent injunctive relief due to the lack of a likelihood of resumption of harm, as discussed infra. Conceptually, the probability of recurrence of violations in this case lies somewhere between a certainty that no violations will recur and a likelihood that violations mil recur. Accordingly, the court will deny defendant’s motion for summary judgment on the ground of mootness. C. Duplicative Penalties Defendant vigorously argues that additional penalties should not be imposed for those violations already addressed by the DEP in the 1991 ACO. It states that it “is not seeking the dismissal of plaintiffs’ claims as to the duplicate permit violations but instead asserts that plaintiffs cannot obtain penalties for the same permit violations for which Hercules has already paid penalties.” Def.Br. at 16 n. 42. Stated differently, defendants are asking the court to find that “on the present record the assessed penalties, which were determined with plaintiff’s input, are more than adequate.” Letter dated January 16, 1992, from Joel Schneider, Esq., to the Honorable Stanley S. Brotman, before whom this motion was previously filed. Plaintiffs retort that they are not seeking “double penalties.” They assume this court will take the penalties previously imposed into account when, and if, the court reaches the issue of penalties. In essence, plaintiffs are arguing that no bar exists to prevent this court from imposing additional penalties for these violations, if the court should deem such additional penalties warranted by the circumstances of this case. Sections 505(b) and 309(g) of the Act specify the circumstances under which citizen suits are precluded. Section 505(b)(1)(B) provides that a citizen suit cannot be brought if a “state has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State” against the violator. 33 U.S.C. § 1365(b)(1)(B). Since neither the NJDEPE nor, for that matter, any other agency, has commenced a civil or criminal court action against Hercules, § 505(b)(1)(B) is not applicable here. State-instituted civil penalty actions are addressed in Section 309(g)(6)(A), which provides in relevant part: [A]ny violation ... for which ... the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be, shall not be the subject of a civil penalty action under [§ 505 of this Act]. 33 U.S.C. § 1319(g)(6)(A) (emphasis added). Section 309(g)(6)(B)(ii) provides in relevant part: The limitations contained in subparagraph (A) on civil penalty actions ... shall not apply with respect to any violations for which ... notice of an alleged violation of section [505(a)(1) of this Act] has been given in accordance with section [505(b)(1)(A) of this Act] prior to commencement of an action under this subsection and an action under section [505(a)(1) of this Act] with respect to such alleged violations is filed before the 120th day after the date on which such notice is given. 33 U.S.C. § 1319(g)(6)(B)(ii) (emphasis added). In PIRG v. Yates Industries, Inc., supra, 757 F.Supp. 438, Judge Thompson denied defendant’s motion to dismiss duplicative violations also raised in an administrative action initiated by the DEP. The court stated that “defendant’s equity arguments are not useful, insofar as section [309(g)(6)(B)] is rather clear on its face as to when and how it applies.” Id. at 445 (quoting from transcript of prior proceedings in that case). The Yates court, however, did dismiss two claims which the DEP previously had considered and upon which it “explicitly declined to act.” Id. at 452. The court stated: [T]he DEP explicitly considered the allegations, and decided not to impose sanctions. ‘If citizens could file suit, months or years later, in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator’s discretion to enforce the Act in the public interest would be curtailed considerably.’ Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 61 [108 S.Ct. 376, 383, 98 L.Ed.2d 306] (1987). Yates at 453. The defendant latches on to this language in making its argument here. Plaintiffs, of course, direct our attention to the Yates court’s previously discussed refusal to dismiss other duplicative violations. The court in PIRG v. GAF Corp., 770 F.Supp. 943 (D.N.J.1990), faced a situation similar to the one here. In GAF, the defendant entered into an ACO with the DEP prior to the filing of the citizen-plaintiffs’ complaint but after the sixty-day notice letter was issued. Id., at 945. In the instant case, the ACO was not signed until almost two years after plaintiffs filed their complaint. But the DEP first issued its Notice of Civil Penalty Assessment, which ultimately resulted in the signing of the ACO, on May 5, 1989, after plaintiffs issued their sixty-day notice and nineteen days.before plaintiffs filed their Complaint. The GAF court held that since the state proceeding did not fall within any of the provisions of § 309(g)(6) of the Act, the suit was not barred. See also PIRG v. New Jersey Expressway Authority, supra, 822 F.Supp. at 183-84. I likewise find §. 309(g)(6) inapplicable here. As discussed above, Hercules does not argue that these duplicative motions must be dismissed. Rather, it argues that this court should not as a matter of equity impose fines for violations for which the DEPE has already penalized it, or, in the alternative, that the court should find as a matter of law that the penalties already imposed and the non-monetary concessions already granted by Hercules are adequate. The court today concludes that plaintiffs are not barred from seeking imposition of additional penalties beyond those already assessed against Hercules by the NJDEPE. I emphasize, however, that I am not today deciding whether the court will in fact impose additional penalties for those violations already addressed by the NJDEPE in the March, 1991 ACO. The court reserves that decision until trial. D. Discharge Violations Of the one hundred fourteen (114) discharge violations listed by plaintiffs (including the ones which the court has decided to dismiss for lack of proper notice), all but one have previously been addressed by the NJDEPE in the March, 1991 ACO. Though as discussed above defendant argues that it should not be assessed additional penalties on top of those already imposed, it disputes only a relatively few on the merits. The only violation not previously addressed was an alleged June 1986 discharge excursion involving TSS, which is listed as violation no. 10 on the chronological list of discharge violations attached to plaintiffs’ September 14, 1992 letter (“PI. 9/14/92 Attachment”). Defendant argues that this specific discharge was not in fact a violation and that it is entitled to summary judgment therefor. Because we have already decided to grant defendant summary judgment on violation no. 10 on other grounds, ie., absence of notice of preComplaint discharge violations, we need not address the parties’ arguments as to the merits of whether this June 1986 incident actually constituted a violation of Hercules’ permit. Defendant also argues that summary judgment must be denied to plaintiffs, and granted to defendant, on those allegations for which a viable “upset” defense exists. The requirements for establishing an upset defense are set forth in Hercules’ permit, Def. Ex. 2, pp B-3, 4, and described in N.J.AC. 7:14A-3.10 and 40 C.F.R. § 122.41(n). An “upset” is defined in the federal regulations as: [A]n exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance or careless or improper operation. 40 C.F.R. § 122.41(n). The U.S. Court of Appeals for the D.C.Circuit has described the reason for establishing the upset defense as follows: Lacking infallibility, no pollution control technology works perfectly all of the time. Occasionally through no fault of the operator, the technology will fail, and pollution levels in the effluent will correspondingly rise. Current EPA regulations provide that when permit effluent limitations based on technological capabilities are briefly exceeded as the result of such an incident, the offending plant will nevertheless be deemed to be in compliance with the Act. This is the so-called “upset defense.” (Footnotes omitted). Natural Resources Defense Council v. U.S.E.P.A, 859 F.2d 156, 206 (D.C.Cir.1988). Defendant states that triable issues of fact exist as to whether it is entitled to the upset defense for certain alleged violations. Defendant contends that three separate upsets occurred. It states that violation Nos. 42-47, PI. 9/14/92 Attachment, resulted when seven electrical failures combined with unusual heavy rainfall to cause an overflow of the Dicup skimmer pit. Violation nos. 43 and 47 were not listed in plaintiffs’ notice letter. The same storm event allegedly also caused a temporary 150% increase in process water flows to the plant. Defendant states that the unanticipated electrical failures in the oil/water separation systems reduced the oil/removal efficiency. Hercules further notes that it notified the NJDEPE of all violations related to this upset within twenty-four (24) hours of Hercule’s knowledge of the event. Such notice is a requisite element of an upset defense. Without such notice, an “upset defense is defective as a matter of law ... on this ground alone.” SPIRG v. P.D. Oil & Chemical Storage, Inc., 627 F.Supp. 1074, 1087 (D.N.J.1986). See also NJPIRG v. United States Metals Refining Co., 681 F.Supp. 237, 242-44 (D.N.J.1987). Most importantly, defendant points out that with respect to alleged violation Nos. 42-47, the NJDEP has already accepted this defense. See Def.Ex. 42 (“NJDEP determined the violations for Total Phenols, COD, and BOD in July 1988 and BOD in August 1988 to be the result of upsets caused by flood and electrical failure. Consequently, NJDEP is not assessing a penalty for these violations.”). Defendant seeks summary judgment on Nos. 42-47. We concur with the assessment of the NJDEPE that the circumstances which resulted in these violations qualify as an upset. Therefore, the court will grant defendant’s motion for summary judgment with respect to discharge violation nos. 42-47. Defendant is also entitled to summary judgment for violation nos. 43 and 47 in any event because they were not noticed by plaintiffs. Defendant contends that violations Nos. 50-59 and 62-65, PI. 9/14/92 Attachment, were caused by the unanticipated failure of a blower and the replacement blower that was put into service. Of these, nos. 52, 54-55, 59, and 62-65 were not listed in plaintiffs’ sixty-day notice. Again, Hercules states that except with respect to one of these violations (no. 64), it notified the NJDEPE within twenty-four hours of Hercules’s knowledge of the event. Because the court finds that genuine issues of material fact exist concerning whether these violations really constitute exceptional incidents qualifying as an upset, the court will deny both parties’ motions for summary judgment on discharge violation nos. 50-51, 53, and 56-58. Because they were not properly noticed, the defendant is entitled to summary judgment on nos. 52, 54-55, 59, and 62-65. As for violations Nos. 68, 71, 73-74, 88 and 93, PI. 9/14/92 Attachment, defendant contends that they were caused by scheduled maintenance work on a clarifier and related problems. Of these, nos. 68, 71, 88, and 93 were not listed by plaintiffs in their notice letter. Defendant states that it reported all but three of these violations to the NJDEPE within twenty-four hours of its awareness of the violation. At the very least, defendant argues, it has raised a triable issue of fact with respect to these alleged violations, and that the court should not grant plaintiffs summary judgment on them. Plaintiffs, on the other hand, again contend that this problem does not qualify as an exceptional incident. They also assert that defendant did not provide the required notice for each of these violations. The court finds that these violations are more appropriately attributed to operational error or, at the very least, to circumstances that were within the defendant’s control. The court therefore will deny defendant’s motion for summary judgment on the basis of an upset defense regarding this set of violations and grant summary judgment for plaintiffs on nos. 73-74 and 78. The court will grant defendant summary judgment on nos. 68, 71, 79-86, 88, and 93 because of their absence from plaintiffs’ notice letter. As to all other violations for which summary judgment was not granted to defendant or denied to both parties, summary judgment will be granted to plaintiffs. II. Injunctive Relief have moved for a permanent injunction pursuant to 33 U.S.C. § 1365(a) prohibiting Hercules from operating its facility in violation of its NPDES/NJPDES permit and, therefore, the Act. The proposed injunction would also require defendant to provide plaintiffs with its DMR’s and the underlying data, to enable plaintiffs to monitor defendant’s compliance with the injunction. Plaintiffs assert that “the types of pollutants which defendant has discharged in excess of its permit limits have been specifically recognized as harmful to public health and aquatic life by the U.S. Environmental Protection Agency. Defendant has violated discharge limitations for TSS, BOD, COD, phenols, TRC, fecal coliform, oil and grease pH, TDS, color, and bioassay.” Pl.Br. at 37. This court agrees that plaintiffs have proved defendant’s violations of discharge limitations in the past, as found elsewhere in this Opinion, and as to which plaintiffs are obtaining partial summary judgment as to liability. Those findings are incorporated herein by reference. Each of these violations evidences a past harm to the environment and will be the subject of potential penalties, as discussed elsewhere, at a future hearing. Plaintiffs also seek injunctive relief based upon defendant’s alleged monitoring, reporting and recordkeeping violations, which are said to “also cause irreparable injury to the environment by seriously undermining effective enforcement of the Act.” Pl.Br. at 44. They argue that “based on defendant’s longstanding and continuing history of noncompliance, such an order is required.” Pl.Br. at 50. They also assert that the “only foreseeable harm [to defendant] from issuance of an injunction compelling defendant to comply with its permit is economic harm to defendant.” Id. at 47. The economic harm of injunctive relief is alleged to be clearly outweighed by the injury to plaintiffs and the public if an injunction is denied. Id. Defendant argues that an injunction is not warranted because Hercules “is and will be in strict compliance with its permit.” Def. Br. at 63. It notes that as of June 25,1992, it “has satisfied all the terms of the [March, 1991] ACO.” Def.Ex. 59. Moreover, defendant states that there has not been a discharge excursion at Gibbstown since August 9,1990. Id. at 61; Def.Sur. Reply at 9. See also Pl.Revised Ex. 8; PI. 9/14/92 Attachment. Defendant further notes that since its previous violations it has built and operated a new wastewater treatment facility and states that its new plant is substantially oversized for its current loadings. See Defendant’s Letter in Response to Plaintiffs’ August 6, 1992 Letter at 3. Defendant also points to plaintiffs’ admission that Hercules’ new plant and equipment is adequate to “treat defendant’s discharge to levels necessary for permit compliance----” Plaintiffs Brief in Opposition to Defendant’s Supplemental Brief Regarding New Factual and Legal Developments at 6 n. 3. The defendant has also submitted evidence that the NJDEPE has recently completed its “Compliance Evaluation Inspection” regarding the September 28, 1992 inspection of the Gibbstown plant. Letter of Joel Schneider, October 12, 1992. Defendant received a rating of “Acceptable,” which is the highest possible rating, the others being Conditionally Acceptable and Unacceptable. Id. A copy of the NJDEPE Compliance Evaluation Inspection letter (attaching the “Discharge Surveillance Report” dated September 30, 1992) verifies these claims of full NJDEPE permit compliance at the Gibbstown Plant. Defendant also submitted evidence of an Administrative Order and Notice of Civil Administrative Penalty Assessment (dated September 10, 1992), which assessed a $600 penalty. Defendant’s Quality Supervisor, John Ziegler, forwarded Defendant’s payment on October 8, 1992, and reported that the violations had been cured by calibrating the pH meters and performing the replicate sample analysis of pH and chlorine residual in accordance with the provisions of N.J.A.C. 7:18-4.7(e)(3) & 4.7(e)(11)(i), respectively. See Letter of John Ziegler to NJDEPE (dated October 8, 1992), attached to Letter of Joel Schneider, supra. There is no evidence that these calibration and testing problems somehow concealed actual discharges exceeding effluent limitations. With respect to outfall 002, defendant notes that on June 28, 1991, it entered into an ACO with the NJDEP regarding this outfall. Def.Ex. 56. Hercules states that there still is no current discharge to Clonmell Creek because the outfall is blocked. Defendant’s Supplemental Brief Regarding New Factual and Legal Developments at 1. Pursuant to the terms of this ACO, Hercules is barred from discharging to Clonmell Creek unless and until the NJDEPE provides written approval. Def.Ex. 56 at ¶ 17. See also Defendant’s September 15, 1992 Letter Brief at 2 n. 3. In their August 6, 1992 Letter Brief, and their Opposition to Hercules, Inc.’s Supplemental Brief Regarding New Factual and Legal Developments in Support of Its Cross-Motion for Summary Judgment, filed on September 3,1992, plaintiffs alleged a total of 26 additional monitoring violations which they did not include in their original submissions. These included alleged monitoring violations such as exceeding holding times for samples or taking several “grab” samples rather than composite samples of influent; these “new” monitoring violations occurred between November 1990 and June 1991. In a letter dated September 14, 1992, plaintiffs state that they erroneously alleged 12 of these 26 violations. They now therefore allege that defendant has committed an additional 14 monitoring violations during the time through June 1991. Defendant denies that it committed any of these alleged additional violations. See Defendant’s September 10, 1992 Letter Brief. Defendant points out, for example, that it has taken only composite samples of influent since July 1,1991, consistent with plaintiffs’ interpretation of this sampling requirement. Id. at 3. Defendant also argues that the court should not grant an injunction based upon monitoring or reporting violations. Id. See also PIRG v. Yates Industries, Inc., supra, 757 F.Supp. 438 (D.N.J.1991) (denying injunction based upon monitoring and reporting violations). The above facts must be analyzed under the prevailing standard for granting permanent injunctive relief. This court may grant permanent injunctive relief under the Clean Water Act, 33 U.S.C. § 1365(a), when the plaintiffs make “a showing both of irreparable injury and inadequacy of legal remedies, and a balancing of competing claims of injury and the public interest.” NRDC v. Texaco Refining and Marketing, Inc., 906 F.2d 934, 941 (3d Cir.1990) (citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 544-47, 107 S.Ct. 1396, 1403-05, 94 L.Ed.2d 542 (1987)). Upon the present record, plaintiffs have failed to show a sufficient likelihood that statutory violations will recur and give rise to irreparable injury. The mere fact of past statutory violations is insufficient to meet the burden of irreparable harm. Id. at 941. Plaintiffs have not shown that the environmental injury arising from the defendant’s discharges that exceeded the permit’s discharge limitations, often by a small factor, none of which has occurred since August, 1990, is of permanent or at least long duration, see Amoco, supra, 480 U.S. at 545, 107 S.Ct. at 1404. Upon the present record, we also cannot conclude that it is “sufficiently likely” that the harm caused by past discharge excursions will be repeated. NRDC v. Texaco, supra, 906 F.2d at 941, (quoting Amoco, supra, 480 U.S. at 545, 107 S.Ct. at 1404). This court recognizes that it has the duty “to beware of efforts to defeat injunctive relief by protections of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is a probability of resumption.” United States v. Oregon Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96 L.Ed. 978 (1951). On the present record, plaintiffs have not demonstrated that defendant’s “protestations of repentance” are insincere or unfounded in facts, nor have plaintiffs demonstrated that violations of effluent limitations are likely to resume despite the 31-month hiatus of such violations since August, 1990. Instead, defendant has taken continuing and successful measures to assure that such harm does not recur. These measures include full compliance with the March, 1991 ACO, and the construction and successful operation of a new wastewater treatment facility. Further measures have been taken, as noted above, to assure continued compliance at outfall 002 under the June, 1991 ACO, under which there is no current discharge to Clonmell Creek. Because no discharge at outfall 002 will occur in the future without NJDEPE approval, and in light of the fact that there has been no permit excursions at outfall 002 since 1989, the recurrence of such harm at outfall 002 remains doubtful. The court also finds that the continuing trickle of alleged monitoring violations, the last of which occurred in June, 1991 (21 months ago) is insufficient to trigger permanent injunctive relief. Although such record-keeping or monitoring violations may occur on a sporadic basis, in light of the sheer statistical certainty of some sort of error as time goes by, this prospect of such recurrence of recordkeeping and monitoring violations is not sufficiently great, nor are the consequences of such sporadic and unintended mistakes so grave in terms of causing harm to the environment, that the need for permanent injunctive relief is shown upon this record. Therefore, plaintiffs’ motion for permanent injunctive relief will be denied without prejudice to another application based upon future violations. III. Defendant’s Motion in Limine to Bar Evidence Regarding Hercules’ Kenvil Facility The case sub judice concerns only Hercules’ permit compliance record at its Gibbstown, New Jersey facility from March 1985 to the present. Plaintiffs contend that if this court does in the end award duplicate penalties, it should take into consideration actions at another, completely unrelated facility, i.e., Hercules’ facility at Kenvil, Morris County, New Jersey. Hercules argues in this motion in limine that evidence regarding its past permit compliance at Kenvil is irrelevant and should be barred from the case. Defendant further argues that even if its violations at the Kenvil facility are relevant, evidence concerning those violations sho